Law and Politics, an Emerging Epidemic: A Call for Evidence-Based Public Health Law

28 Pages Posted: 8 Nov 2016

See all articles by Michael R. Ulrich

Michael R. Ulrich

Boston University - School of Law; Boston University School of Public Health; Yale Law School

Date Written: May 2016


As Jacobson v. Massachusetts recognized in 1905, the basis of public health law, and its ability to limit constitutional rights, is the use of scientific data and empirical evidence. Far too often, this important fact is lost. Fear, misinformation, and politics frequently take center stage and drive the implementation of public health law. In the recent Ebola scare, political leaders passed unnecessary and unconstitutional quarantine measures that defied scientific understanding of the disease and caused many to have their rights needlessly constrained. Looking at HIV criminalization and exemptions to childhood vaccine requirements, it becomes clear that the blame cannot be placed on the hysteria that accompanies emergencies. Indeed, these examples merely illustrate an unfortunate array of examples where empirical evidence is ignored in the hopes of quelling paranoia. These policy approaches are not only constitutionally questionable, they generate their own risk to public health. The ability of the law to jeopardize public health approaches to infectious disease control can, and should, be limited through a renewed emphasis on science as the foundation of public health, coordination through all levels and branches of government, and through a serious commitment by the judiciary to provide oversight. Infectious disease creates public anxiety, but this cannot justify unwarranted dogmatic approaches as a response. If we as a society hope to ensure efficient, constitutional control over the spread of disease, it is imperative that science take its rightful place at the forefront of governmental decision-making and judicial review. Otherwise, the law becomes its own public health threat.

Keywords: public, health, law, infectious, disease, illness, virus, empirical, evidence, science, data, risk, threat, quarantine, ebola, politics, isolation, HIV, AIDS, criminalization, immunization, vaccination, Jacobson, exemption, media, rights, fear, constitution, emergency, politician, police, power

Suggested Citation

Ulrich, Michael R., Law and Politics, an Emerging Epidemic: A Call for Evidence-Based Public Health Law (May 2016). American Journal of Law and Medicine, Vol. 42, No. 2-3, 2016, Available at SSRN:

Michael R. Ulrich (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Boston University School of Public Health ( email )

715 Albany Street
Boston, MA 02118
United States

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

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